Comm'r of Internal Revenue

This case is not covered by Casetext's citator
Tax Court of the United States.Feb 8, 1957
27 T.C. 758 (U.S.T.C. 1957)

DOCKET No. 61365.



Erle Pettus, Jr., Esq., for the petitioner. Homer F. Benson, Esq., for the respondent.

Erle Pettus, Jr., Esq., for the petitioner. Homer F. Benson, Esq., for the respondent.

Petitioner, a single man, claimed as a dependent a married and undivorced woman with whom he lived as man and wife during the entire taxable year 1954, in violation of the criminal laws of the State where he maintained his abode. Held, that an individual living in unlawful intimacy with a taxpayer is not a dependent within the meaning of section 152(a)(9), I.R.C. 1954.

This proceeding involves a deficiency in income tax of the petitioner for the taxable year 1954 in the amount of $620.37.

The sole issue presented is whether petitioner, a single man, is entitled to a dependency exemption for Tina Johnson, a married woman, with whom he lived as husband and wife during the year 1954. Other issues have been disposed of by stipulation.


The stipulated facts are found accordingly.

Petitioner is a resident of Bessemer, Alabama. He filed his individual income tax return for the calendar year 1954 with the district director of internal revenue for the district of Alabama.

In 1954 petitioner was unmarried. In 1947 Tina Johnson married David Johnson, from whom she separated in 1949. Except for the sum of $52 in 1950, Tina has received no support or funds from her husband. Tina and her husband have not been divorced. In the years 1950, 1951, and 1952, and until sometime in 1953, Tina was employed and supported her two children.

Sometime during 1953 Tina moved into the home of petitioner, and during the entire taxable year 1954 they lived openly together as man and wife. In April 1954 Tina gave birth to a child.

During the taxable year 1954 Tina had no income of her own and received her entire support from petitioner.

In his individual income tax return for the year 1954 petitioner claimed a dependency exemption for Tina, which was disallowed by the respondent.

During the taxable year 1954 Tina Johnson was not a dependent of petitioner within the purview of sections 151(e)(1) and 152(a)(9) of the Internal Revenue Code of 1954.


LEMIRE, Judge:

The question presented involves the propriety of respondent's disallowance of petitioner's claim for a dependency exemption for Tina Johnson.

Section 151(e)(1) of the Internal Revenue Code of 1954 provides for a dependency exemption for each dependent as defined in section 152(a). Petitioner contends that he is entitled to a dependency exemption since each requirement of section 152(a)(9) is met.

SEC. 152. DEPENDENT DEFINED.(a) GENERAL DEFINITION.— For purposes of this subtitle, the term ‘dependent’ means any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer (or is treated under subsection (c) as received from the taxpayer):(9) An individual who, for the taxable year of the taxpayer, has as his principal place of abode the home of the taxpayer and is a member of the taxpayer's household, or

The uncontroverted facts disclose that petitioner in the taxable year in question was living in adulterous cohabitation with Tina Johnson, the undivorced wife of David Johnson. The support which petitioner furnished Tina was voluntarily assumed and not legally imposed.

The question presented is one of first impression. Is the language used in section 152(a)(9) to be construed literally so as to embrace an individual living in illicit intimacy with a taxpayer?

The 1954 Code retains the eight provisions of the 1939 Code, all of which are based on relationship by blood or marriage, and to which have been added two new classifications. Paragraph (9) of section 152(a), with which we are concerned, permits greater flexibility in that it provides a new concept to the tests for dependency in which no such relationship is required.

The legislative history furnishes little assistance as to the congressional intent in enacting paragraph (9). The Senate Committee Report sets forth the following example of its application:

S. Rept. No. 1622, 83d Cong., 2d Sess. (1954), p. 194.

For example, under paragraph (9) the taxpayer will be entitled to claim a foster child (who is not legally adopted) as a dependent (assuming the support and earnings tests are met) provided the foster child is a member of the taxpayer's household and lives in the taxpayer's home for the entire taxable year, except for vacations or time away at school.

A similar example is incorporated in the proposed Treasury regulations under the 1954 Code, sec. 1.152-1(b).

We think little will be added by reviewing definitions given by the courts and lexicographers as to the meaning of the terms ‘member’ and ‘household.’ They mean different things depending on whether they are used in a broad or narrow sense.

In our opinion Congress never intended the specific paragraph in question to be construed so literally as to permit a dependency exemption for an individual whom the taxpayer is maintaining in an illicit relationship in conscious violation of the criminal law of the jurisdiction of his abode.

We are of the opinion that to so construe the statute would in effect ascribe to the Congress an intent to countenance, if not to aid and encourage, a condition not only universally regarded as against good public morals, but also constituting a continuing, willful, open, and deliberate violation of the laws of the State of Alabama. Ala. Code tit. 14, sec. 16 (1940). This we are unable to do.

SEC. 16. * * * Living in adultery or fornication.— If any man and woman live together in adultery or fornication, each of them shall, on the first conviction of the offense, be fined not less than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months; on the second conviction for the offense, with the same person, the offender the second conviction for the offense, with the same person, the offender shall be fined not less than three hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months; and, on a third, or any subsequent conviction, with the same person, shall be imprisoned in the penitentiary for two years.

In so interpreting paragraph (9) we do not intend to hold that is purpose is to be limited to cases falling within the example set forth in the Committee Report, but are here applying the well settled rule that statutes should receive a sensible construction, so as to effectuate the legislative intention and, if possible, avoid an absurd conclusion. United States v. Kirby, 74 U.S. 482; Sorrells v. United States, 287 U.S. 435; Robert S. Bassett, 26 T.C. 619.

We hold, therefore, that the respondent did not err in disallowing petitioner a dependency exemption for Tina Johnson in the taxable year 1954.

Reviewed by the Court.

Decision will be entered under Rule 50.

TIETJENS, J., concurs in the result.

MULRONEY, J., dissents.

WITHEY, J., concurring: I concur in the result here reached, but upon grounds other than public policy which it seems to me are, in essence, those upon which decision in the majority opinion has been founded.

In my view Tina was not a dependent within the meaning of section 152(a)(9) because petitioner has failed to establish that his expenditures for her living costs during 1954 constitute ‘support’ as that word is used in section 152(a).

There certainly was no legal duty on petitioner's part to support Tina and it seems obvious there was no moral reason for him to do so. It would seem to follow therefore that such living expenditures as he made for her are properly to be regarded as remuneration for the services she rendered to him as a member of his household. That being true it seems only reasonable to conclude that his payment of her living expenses is to be regarded only as wages such as are normally paid a domestic for housekeeping services. Viewed in that light petitioner furnished Tina no support whatsoever, she, by her labor, furnished her own support.

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